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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
JUDGMENT
Case No: A146/2025
Magistrate’s Court: 11892/2022
In the matter between:
Y[...] M[...] Appellant (Plaintiff
in court a quo)
And
S[...] P[...] Respondent (Defendant
in court a quo)
CORAM: PANGARKER J and HIGGINS AJ
HEARD: 7 NOVEMBER 2025
DELIVERED: 13 APRIL 2026 (delivered electronically)
Summary: Appeal from Magistrates’ Court – Appellant and respondent
previously concluded an Islamic marriage – Marriage dissolved after a
year – Appellant instituted a civil action against respondent in the
Magistrates’ Court for monies paid to him and on his behalf – Islamic legal
obligation of nafaqah relied upon - Waiver, unjustified enrichment and
agreement between the parties, considered – Magistrate’s rejection of
nafaqah principle on the basis that it has no place in South African law,
considered
_______________________________________________________________
ORDER
________________________________________________________________
1. The appeal is upheld to the extent set out in paragraph 2 below.
2. The order of the Wynberg Magistrates’ Court dated 4 September 2024 is
set aside and substituted with the following:
a. The plaintiff's claim is upheld in the amount of R96 780.
b. Judgment is entered in favour of the plaintiff against the defendant
for R96 780 together with interest a tempore morae from date of
letter of demand, and costs (including the costs of counsel).
3. The respondent is ordered to pay the costs of the appe al (counsel's fees
on scale B).
JUDGMENT
THE COURT (PANGARKER J and HIGGINS AJ)
Introduction
[1] This appeal concerns the financial consequences of a brief marriage
solemnised according to Islamic rites. The appellant, Ms Y[...] M[...], sought to
recover R154 118.61 from the respondent, Mr S[...] P[...], her former husband.
The claim was for var ious expenses she incurred for the joint household and for
the respondent's personal benefit during their marriage from August 2020 to
August 2021. The marriage was dissolved by way of an Islamic annulment
(faskh).
[2] The appeal is against the whole judgmen t and order of the Magistrates'
Court for the District of Wynberg, in which the appellant's claim was dismissed
with costs after conclusion of a trial. The central issue before this Court is
whether the appellant's payments were voluntary gifts or whether they gave rise
to a legally enforceable obligation to be reimbursed by the respondent once he
regained financial strength, arising either from an agreement between the parties
(express or tacit), the principles of Islamic law ( nafaqah), or unjustified
enrichment.
Factual background
[3] The parties, both Muslim professionals residing in the Western Cape,
rekindled a prior relationship in March 2020. The appellant is an attorney who ran
her own legal practice. The respondent was employed in the NGO sector but,
crucially, was under debt review and had a duty to support his mother. His
financial position was therefore constrained.
[4] In June 2020, the relationship progressed towards marriage. In
accordance with Islamic custom, the respondent approached the appellant's
father, Mr A[...] M[...], to seek his blessing and to ask for his daughter's hand in
marriage. During this meeting, the respondent affirmed his intention to fulfil the
Islamic obligation of nafaqah – spousal maintenance. T he appellant's father
testified during the trial that he would not have granted his blessing had he not
been satisfied that the respondent understood and intended to honour this duty.
The parties were subsequently married according to Islamic rites ( nikah) on 8
August 2020.
[5] The marriage was, by all accounts, short and turbulent. The appellant
conceived shortly after the wedding, and their son, M ..A.., was born prematurely
in 2021. This resulted in significant and unexpected medical expenses. The
relationship deteriorated rapidly thereafter, and the marriage was eventually
dissolved by faskh on 12 August 2021.
[6] During the subsistence of the marriage, it is common cause that the
appellant bore the lion's share of the household expenses. Her evidence during
the trial in the court a quo, supported by a detailed schedule and bank and credit
card statements, itemised the expenses. These included rental payments of R6
000 per mont h (totalling R78 000 for the period claimed); groceries and
household provisions (R17 011); 50% of the total medical costs for her
pregnancy and the premature birth (R16 360); travel and fuel costs, including an
expense for a trip to Durban (R5 952); an in surance excess of R4 000 arising
from damage to the appellant's vehicle caused by the respondent; capital of R2
600 advanced for a vape juice business venture proposed by the respondent;
and various telecommunication charges such as Vodacom and iCloud fees.
[7] The respondent did not dispute that these expenses were paid by the
appellant nor that he and the household benefited from them. His defence was
that there was no agreement to repay. He contended that the payments were
voluntary contributions or gifts made by the appellant with full knowledge of his
financial situation, effectively discharging his nafaqah obligation as an act of
kindness.
The pleadings and the case advanced on appeal
[8] The appellant's amended Particulars of Claim were framed around an
alleged verbal premarital agreement concluded in June 2020. The terms pleaded
were that the respondent undertook to maintain her in accordance with nafaqah,
but given his temporary financial constraints, she would assist with expenses with
the express understanding that he would reimburse her in full once he was
financially able to do so.
[9] The respondent's Plea was a bare denial. He denied the existence of any
such agreement and asserted that all payments were voluntary.
[10] Importantly, counsel for the appellant argued on appeal that the pleadings,
while structured around an agreement, were broad enough to encompass
alternative bases for recovery, such as loans or enrichment. He relied on the
principle in Shill v Milner1 that pleadings are made for the court and that a court
is not debarred from deciding a dispute that has been fully ventilated merely
because the pleadings were not explicit.
[11] Counsel for the respondent argued forcefully that the appellant's case
stood or fell on the proof of the verbal agreement. She submitted that the court a
quo was correct in finding that the appellant failed to prove that the respondent
had the requisite animus contrahendi (intention to contract) and that, without
such an agreement, all payments were irrecoverable donations (gifts).
The appellant’s submissions
[12] Before analysing the matter, it is necessary to address the key
submissions made by counsel, as it is a fundamental tenet of justice that a court
1 Shill v Milner 1937 AD 101 at 105-106.
on appeal must demonstrate that it has considered the arguments placed before
it.
[13] The appellant’s counsel submitted that the magistrate erred in confining
the claim to the express agreement. He argued that the pleadings, which
included schedules of expenses, were wide enough to allow for recovery on the
basis of a tacit agreement, loans, or unjustified enrichment, thus relying on Shill
v Milner.2 On Islamic law, counsel argued that the magistrate failed to properly
consider the expert evidence of Mufti Mogamat Maker , the appellant’s expert
witness. He submitted that nafaqah is a legal obligation, not a moral one, and
where a wife pays in the husband's stead, the presumption in Islamic law is that it
constitutes a loan, not a gift, unless the wife explicitly waives repayment.
[14] On the facts, the appellant’s counsel pointed to concessions elicited from
the respondent under cross -examination, including that he would not have
married if the appellant had not paid the rent ; that he asked for the vape juice
capital and that he caused an accident with the appellant’s vehicle. He su bmitted
that the appellant had proved her claim or at least a significant portion thereof,
with a minimum proven quantum of R111 923. Counsel further submitted that the
magistrate placed undue emphasis on minor discrepancies to discredit the entire
claim.
The respondent’s submissions
[15] The respondent’s counsel submitted that the appellant bore the onus of
proving the agreement she pleaded, citing Dave v Birrell3 and Pillay v Krishna.4
She argued that the respondent lacked animus contrahendi , pointing to the
2 Op cit footnote 1
3 1936 TPD 192 at 196
4 1946 AD 946 at 952-953
appellant's testimony that she did not mind contributing financially at first, and
relied on Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd 5 for the proposition that
proving a contract requires proving the parties’ intention to be bound. On Islamic
law, she argued that Mufti Maker's evidence supported the respondent's case: a
wife may spend her money on the household without creating an obligation on
the husband to reimburse her. Regard ing quantum, counsel for the respondent
attacked the proof of specific claims, such as the insurance excess and business
capital, submitting that if the latter was a loan, it was not pleaded as such.
[16] These submissions are considered in the analysis that follows.
Evaluation of the court a quo’s judgment
[17] The appellant amended her Notice of Appeal prior to the hearing of the
appeal. The main grounds of appeal are that the court a quo erred in limiting the
appellant's claim strictly to a pre -marital agreement; that it failed to consider her
claims based on unjustified enrichment or loans; it mischaracterised the
appellant's claims and disregarded the testimony of Mufti Maker. These grounds
are addressed below.
[18] The magistrate delivered a comprehensive judgment, and additional
reasons for her order. However, in our view, she fell into several material errors of
law and fact which justify interference by this Court.
[19] Firstly, the magistrate concluded in her judgment that the Islamic principle
of nafaqah finds no place in South African law and repeated this view in her
written reasons some months later. As a general proposition, and prior to the
5 [2002] 3 All SA 369 (A) para 33
recognition of Muslim marriages, such finding would in all probability have been
correct.
[20] However, in the context and circumstances of the parties as ex-spouses in
an Islamic marriage , the evidence led in the trial and in view of recent
developments such as the Divorce Amendment Act 1 of 2024 6, the magistrate
was required to consider the context of the parties in relation to the action
instituted by the appellant . In other words, that the parties are Muslim and were
previously married in terms of Islamic (Shariah) law.
[21] In addition, the magistrate should have been mindful that the precursor to
the Divorce Amendment Act was the Constitutional Court's judgment in Women's
Legal Centre Trust v President of the Republic of South Africa, 7 which finally
recognised Muslim marriages.
[22] While the matter before the court a quo was a civil trial, and not a family
law dispute, the magistrate's adoption of a strictly civil law outlook whereby she
rejected the appellant's case based on nafaqah as it had no place in South
African law, impacted on her findings in the judgment. In our view, she adopted
an overly cautious approach to the principle of nafaqah as it related to this crucial
legal obligation in the parties’ marriage.
[23] In respect of the evidence presented during the trial, the magistrate
unfortunately paid little regard to the expert evidence of Mufti Maker who
explained the respondent's Islamic legal obligation of paying for the essential
needs of the appellant (his spouse) such as clothing, food, shelter and medical
care and the implications of non -fulfilment of this obligation. It is apparent from
6 The Divorce Amendment Act 1 of 2024 took effect on 1 May 2024.
7 2022 (5) SA 323 (CC) paras 85-90.
the record that the expert's testimony was not materially gainsaid by the
respondent nor seriously attacked in cross-examination.
[24] Secondly, the magistrate erred in treating the appellant's claim as standing
or falling entirely on the basis of lack of proof of a formal, express oral
agreement. While the agreement was the primary b asis pleaded, the pleadings
were not so narrow as to preclude recovery of monies on alternative grounds.
The Particulars of Claim catalogued a wide range of expenses and the
respondent's blanket denial placed all issues in dispute.
[25] The trial proceeded w ith both parties leading extensive evidence on the
nature of the payments. The real dispute ventilated was whether the respondent
was obliged to reimburse the appellant. In such circumstances, to dismiss the
claim solely because the formal agreement was no t proved with textbook
precision was unjust. The Appellate Division in Shill v Milner held that:8
‘Pleadings are made for the Court, not the Court for pleadings… Once the
parties have, without objection, joined issue and led their evidence upon
the real question in dispute, the Court is not debarred from deciding that
question merely because it may not have been raised with due accuracy
by the pleadings.’
[26] Thirdly, the magistrate failed to properly consider whether a tacit
agreement could be inferre d from the parties' conduct. The legal principles
regarding tacit contracts are well -established. The question was whether the
conduct of the parties, viewed objectively, g ave rise to an inference that they
intended to contract. In Sonap Petroleum (SA) (Pty) Ltd v Pappadogianis,9 the
8 Op cit fn 1 at 105-106.
9 1992 (3) SA 234 (A) at 239I-240C
court set out the test as follows: what would a reasonable person in the position
of the other party have understood the first party's intention to be?
[27] Applying that test to this matter, our view is that the evidence supports the
existence of a tacit agreement that the appellant's payments for core living
expenses were loans, not gifts, for the following reasons:
[27.1] The respondent approached the appellant's father, affirming his duty of
nafaqah.
[27.2] The respondent admitted under cross-examination that if the appellant had
not paid the rent, they would not have married. This demonstrate d a clear
understanding that her payment was a necessary condition for the marriage to
proceed, not a voluntary gift to which he was entitled to.
[27.3] In April 2021, prior to the marriage ending, the appellant demanded that
the respondent start s contributing to the rent. This demand was entirely
inconsistent with her payments being intended as irrevocable gifts. A reasona ble
person in the respondent's position would have understood from this that the
appellant expected repayment of such amounts.
[27.4] The respondent also requested the appellant to purchase a supply of vape
juice to start a business. This was an express request for capital for his personal
venture, and this can only reasonably be interpreted as a request for a loan10.
10 The respondent admitted to consuming the vape juice
[28] The conduct of the parties, therefore, speaks not of a series of gifts but of
a common understanding that the appellant was temporarily assisting the
respondent, with the expectation of eventual reimbursement.
[29] Fourthly, the magistrate mischaracterized the nature of the claim. It was
not a claim for maintenance but comprised distinct categories, as follows:
[29.1] Essential living expenses (rent, groceries, medical costs): these are the
core components of the Islamic nafaqah obligation.
[29.2] A delictual claim (insurance excess): this arose from the respondent's
negligent act of crashing the appellant's car. This is a claim for damages.
[29.3] A commercial loan (vape juice): this was capital advanced for a business
venture.
The application of nafaqah
[30] The Holy Quran explicitly imposes a duty of maintenance on the husband
as follows11:
‘Let the man of means spend according to his means, and the man whose
resources are restricted, let him spend according to what Allah has give n
him.’
[31] This verse establishes that the obligation is scaled to the husband's ability,
but it remains his obligation. The expert evidence of Mufti Maker was clear and
unchallenged: he testified that nafaqah is a mandatory legal obligation 12 and he
11 Surah At-Talaq 65:7 – see https://quran.com, Abdullah Yusuf Ali English translation
12 The Arabic term is Wajib, meaning obligatory, necessary or mandatory
distinguished between a gift and a loan. Crucially, Mufti Maker also testified that
in circumstances where the husband is unable to pay and the wife steps in, the
presumption is not that she is making a gift ; rat her, she is extending what is
effectively a loan 13 which the husband must repay when he is able to. This is to
protect the wife's financial independence and prevent her from being unjustly
impoverished by fulfilling the husband's primary duty.
[32] The presumption regarding a loan only shifts if the wife explicitly declares
her intention to waive repayment as a gift. As stated in the Quran 14, regarding
financial matters between spouses, there is an emphasis on mutual consumption
with enjoyment and goodwill, but this does not negate underlying obligations. To
add, the principle of not consuming another's wealth unjustly is foundational in
Islam15. The respondent led no evidence to suggest that the appellant ever made
such an unequivocal or explicit declaration of waiver.
[33] The Islamic l egal context thus provides the normative backdrop against
which the parties' conduct must be understood. It explains why the respondent
approached the appellant's father first to seek permission to marry the appellant .
It also explains why the appellant would have expected to be reimbursed for the
sums of money she spent during the marriage, as described in the pleadings and
during the trial . In addition, it demonstrates that her pay ments for rent, food and
essential medical care were not voluntary benevolence, but a step -in to satisfy
the respondent's own primary obligation as a Muslim husband. To hold otherwise
would thus be to permit the respondent to be unjustly enriched at the ap pellant's
expense.
The insurance excess and business capital
13 Qard is the Arabic term for loan – see, for example, https://islamic-relief.org for English
translation
14 Surah An-Nisa 4:4 – English translation, https://legacy.quran.com
translation
14 Surah An-Nisa 4:4 – English translation, https://legacy.quran.com
15 Surah Al Baqarah 2:188 – English translation, https://quran.com
[34] The insurance excess and business capital amounts stand on an even
firmer footing. The claim for the R4 000 insurance excess is a claim for damages
and in this regard, the evidence shows the respondent took the appellant's
vehicle without her being present and caused an accident. He is thus liable for
the damages caused by his negligence. His defence that he was never asked to
pay is, in our view, no defence to a liability that arises by operation of law and as
a result of his actions.
[35] Similarly, the amount of R2 600 as vape juice capital is either an oral loan
agreement as the respondent requested the money for a specific purpose or, at
the very least, a claim based on unjustified enrichment. The respondent admitted
that he asked for the stock, the business failed and he personally consumed the
stock. He was thus enriched at the appellant's expense, and there is no legal
cause for him to have retained that benefit.
Waiver
[36] The respondent's submissions that the appellant's payments were
voluntary gifts is unconvincing because he did not discharge the onus of proving
waiver. Waiver is not lightly presumed. It requires a clear and unequivocal
demonstration of an intention to abandon a known right 16 and furthermore, the
party who asserts waiver has the onus of proving it on a balance of probabilities.
[37] In Alfred McAlpine and Sons (Pty) Ltd v Transvaal Provincial
Administration,17 the High Court set out the principles regarding the onus and
proof of waiver by conduct. The appellant's willingness to pay and the provision
of her bank card were acts which were consistent with temporary assistance. Her
demand for repayment in April 2021 is unequivocal evidence that she had not
16 Phoenix Salt Industries (Pty) Ltd v The Lubavitch Foundation of Southern Africa 2026 91) SA
460 (SCA) par [23]
17 1977 (4) SA 310 (T) at 323D-325A.
waived her rights , and the respondent's case on this point must therefore be
rejected.
Quantum
[38] The magistrate also erred in dismissing the quantum as unproven due to
minor discrepancies. The proper approach was to weigh up the evidence
holistically, including the documentary evidence, which was substantial. While the
appellant conceded some minor misallocations, her core evidence was
consistent and corroborated.
[39] On the other hand, the respondent's concessions, detailed in the
appellant's heads of argument, were devastating to his case. He did not dispute
that the appellant paid the rent but took issue only with the total. He did not deny
that groceries were consumed, only that the amount was excessive.
Furthermore, the respondent did not deny being present when the appellant paid
medical bills.
[40] However, we are of the view that appellant's claim was over -inclusive in
that not every item she paid for f ell within the scope of the tacit agreement or the
nafaqah obligation as it operated between the parties. To elaborate, t ravel costs
for a Durban trip and personal items such as sunglasses and vape juice for the
respondent, were not recoverable as they were either joint expenses or gifts of a
personal nature for which no specific agreement to repay was prove d.
Accordingly, the appellant was not entitled to the recovery of these amounts.
[41] Having reviewed the evidence, the appellant succeeded in proving the
following items on a balance of probabilities:
Rent: R72 000 (R6 000 x 12 months). The marriage lasted 12 months. The
full amount was paid by the appellant for the respondent's housing, his
primary nafaqah duty;
Groceries: R10 000, which constitutes a reasonable estimate of the
appellant's share of the proved grocery expense in relation to the
respondent's food, another primary nafaqah duty;
Medical expenses: R8 180, being the appellant's 50% contribution as
pleaded, which represents a fair apportionment of the nafaqah obligation
in relation to the birth of the parties’ child;
Insurance excess: R4 000, a delictual claim;
Vape juice business capital: R2 600 which constituted a loan/enrichment;
Total: R96 780.
[42] In view of the above discussion and our findings, we conclude that the
magistrate thus erred in dismissing the appellant’s claim with costs. In our view,
at best for the appellant, her claim should have succeeded to the extent proved
at trial in the sum of R96 780.
Costs
[43] The appellant's claim in the magistrates' court was for a capital sum of
R154 118,81 and it is evident from the findings above, that she successfully
proved R96 780 of her quantum, which equates to 63% of the initial capital
claimed. This percentage represents a successful claim , albeit for a slightly
lesser amount than that claimed in the Summons. She would thus be entitled to
an order that judgment in the sum of R96 780 is entered in her favour.
[44] It thu s follows that the appeal should succeed . Having regard to the
submissions on costs, this is not a case of mixed success. It would have been a
different case if, for example, less than 50% of the appellant’s claim was
successful, as in such instance the appellant would have been largely
unsuccessful. This eventuality would have impacted the appropriate costs order.
[45] The appellant's counsel submitted that if the appeal proved to be successful,
costs should be awarded in her favour with counsel's fees in terms of Rule 67A, on scale
B. As the appellant's claim should have been upheld by the court a quo, costs should
have followed the result in th e magistrates’ court . She had prosecuted the appeal
successfully. Both parties were represented by counsel during the trial in the Magistrates’
Court.
[46] Counsel for the respondent submitted that if the appeal was u pheld, then
no costs order should be granted against the respondent as the appellant is a
legal representative and the legal representation fell far below what was
expected. It is common cause that the appeal should have been heard on an
earlier date and d ue to issues with the record, and after a meeting with all legal
representatives, the appeal was postponed to a later date. At the hearing, both
parties' condonation applications were granted with costs being costs in the
cause. There were thus no additional costs aspects to consider in the appeal.
[47] In our view, the appellant should be entitled to the costs of the action and
costs on appeal. It bears mentioning that the respondent sought an order
dismissing the appeal with costs but, in the same insta nce submitted that were
the appeal were to succeed, this court should order that each party should pay
their own costs or that there should be no order as to costs . The basis for this
submission was the legal representation issue , which is simply unpersuasive.
There is no basis to stray from an order that costs should follow the result.
[48] Lastly, the appellant sought attorney and client costs in her action, which
was neither motivated nor justified in the circumstances of the matter.
Order
[49] In the result, the following order is granted:
1. The appeal is upheld to the extent set out in paragraph 2 below.
2. The order of the Wynberg Magistrates’ Court dated 4 September 2024 is
set aside and substituted with the following:
a. The plaintiff's claim is upheld in the amount of R96 780.
b. Judgment is entered in favour of the plaintiff against the defendant
for R96 780 together with interest a tempore morae from date of
letter of demand, and costs (including the costs of counsel).
3. The respondent is ordered to pay the costs of the appeal (counsel's
fees on scale B).
_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
______________________________
I HIGGINS
ACTING JUDGE OF THE HIGH COURT
Appearances
For appellant: Adv P Tredoux
Instructed by: Moollajie and Associates Attorneys
Cape Town
For respondent: Adv E Carey-Wessels
Instructed by: Parker Attorneys and Conveyancers
Cape Town